District Consumer Disputes Redressal Forum, Barnala, Punjab.
Complaint Case No. : 272/2014
Date of Institution : 05.12.2014
Date of Decision : 18.06.2015
In the matter of:
Anish Aggarwal s/o, Jasbir Kumar resident of Patel Nagar, Barnala, Tehsil and District Barnala.
…Complainant.
Versus
1) M/s Bansal Automobiles, Handiaya Road, Barnala, through its Manager/ Authorized Signatory.
2) Hero Honda Corp. Ltd., Head office, 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi –110057 through its M.D /Chairman
…Opposite parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present : Sh. Preet Mohinder Singh Advocate for complainant.
Sh. J.K. Kapil Advocate for opposite party No. 1
Sh. N.K. Garg Advocate for opposite party No. 2
Quorum:
1. Shri S.K. Goel : President
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(By Ms. Vandna Sidhu Member):
This complaint No. 272/2014 has been filed by the complainant along with affidavit and documents. Brief facts of the case are that complainant purchased a Hero Honda Passion pro motor cycle bearing engine no. HA10-ECB9G11173, chassis No. MBLHA10EUB9G11008 Colour Black HVY GREY, for amount of Rs. 47,110/- from the opposite party no.1 on 22.5.2012, its invoice No. 24, for his personal use and opposite party No. 1 gave a guarantee of 3 years on alleged Motor Cycle, which is manufactured by opposite party No. 2, as such he is the consumer of the opposite parties. The complainant had to got issued the registration certificate of the said motor cycle from the Motor Vehicle Authority, Barnala through opposite party No. 1 as per Govt. policy and for this purpose the opposite party No. 1 separately charged the fee from the complainant. As per complainant, due to the bad intention of opposite party No. 1 he told to the complainant during the time of purchase that Motor Cycle was a model of January 2012. So, R.C was issued of same month & year and motor cycle is under guarantee as per the pleadings of the complainant. From the month of December 2013 complainant has faced many problems regarding battery, shocker, chain set, switches, mileage etc. Colour of the above said model also faded. Complainant visited many times at the shop of opposite party No. 1 but he made many excuses and complainant sent Emails and approached telephonically but opposite parties No. 1 and 2 did not pay any attention towards repair of Motor Cycle.
2. It is alleged that on 20.3.2014, complainant went to the show room of opposite party No. 1 during the period of guarantee/warranty, for removing aforesaid problems but not only opposite party No. 1 refused to rectify these problems free of cost inspite of guarantee/warranty period. Opposite party No. 1 totally denial after saying that guarantee/warranty period in regard of repair of free of cost because warranty has been elapsed and further told to complainant that motor cycle has model of 10.9.2011. During the time of service a job card also issued to Anish Aggarwal in which the model of the above said vehicle was mentioned as 10.9.2011 and complainant after showed RC of 2012 of said vehicle on 20.3.2014, to opposite party No.1, complainant misbehaved by shopkeeper i.e opposite party No. 1 in the presence of two witnesses who was present there namely Sh. Amrit Pal Goel son of Sh. Gian Chand resident of Street No. 3, Patel Nagar, K.C. Road, Barnala and Sh. Maninder Singh son of Modan Singh, resident of Nanaksar Thath Nagar, Ward No. 17, Barnala. Computerized record of the said vehicle was tampered by opposite party No. 1 and fraudulently making the guarantee/warranty of motor cycle elapsed. The fact regarding tampering the document clearly shows from the job card dated 20.3.2014 and as per warranty copy of alleged motor cycle it has warranty of two years or 30,000 Kilometers as per policy. Regarding this matter complainant has also filed a criminal complaint against the opposite party No. 1, which is pending for pre-evidence in the Learned Trial Court of Sh. Gurkiran Singh, P.C.S., J.M.I.C., BARNALA. And the complainant has every right to avail the remedy i.e. civil, criminal as well as in Consumer Forum. It is also alleged that motor cycle is not in running condition and complainant unable to do his business as well as domestic work on time, which causes great mental shock, pain, agony, harassment, trauma and economic loss due to the illegal and fraudulent act of the opposite parties, by this way the aforesaid act and conduct of the opposite parties amounts to cheating and unfair trade practice, which comes within the definition of deficiency in service. Thus with these allegations the complainant prayed to this Forum to allow the instant complaint and direct the opposite parties;-
1) To change the above said motor cycle with new one.
Or To pay Rs. 47,110/- along with update interest 18% from the date of purchase till filing the complaint.
2) To pay Rs. 20,000/- jointly or severally on account of mental shock, pain, agony, harassment and trauma caused to the complainant and litigation expenses i.e. Rs. 5000/- total compensation amount is Rs. 72,110/-.
3. On the other hand opposite parties also filed written arguments. In version, legal objection were taken interalia that the complainant has no locus standi or cause of action to file the present complaint. Present complaint is frivolous and vexatious and liable to be dismissed under Section 26 of the Act. The present complaint is baseless and flagrant abuse of process of law to harass the opposite parties and complainant concealed material facts from this Forum. On merits of reply, opposite party No. 1 has objection and corroborated in regard of emails and telephonic message of complainant by attaching the copies of responded emails. Moreover as per version complainant has failed to make difference between guarantee and warranty, opposite party No. 1 never gave three years guarantee to the complainant for the motor cycle. Hon’ble Forum has no jurisdiction to entertain and try this complaint and opposite party No. 1 filed objection on criminal complaint filed by the complainant in the Court of Sh. Gurkiran Singh, J .M. I.C., Barnala on the same matter on the basis of same facts, which is pending in the Hon’ble Forum. It is brought in the knowledge of this Forum by opposite party No. 1 that complainant came in the Forum on 5.12.2014. whereas criminal complaint filed on 18.10.2014. So as per version of the opposite party No. 1 instant complaint does not lie within the jurisdiction of this Forum. Opposite party No. 1 is always ready to carry out the necessary repairs to the motor cycle whatever is covered under the warranty. So, due to the above objections complainant is not entitled to get any relief against the answering opposite party No. 1.
4. As per the version of opposite party no. 2 instant complaint is barred by limitation, since the motor cycle was sold on 22.5.2012, however the complaint was presented on 5.12.2014, hence it is barred by law under section 24–A (2). Opposite party No. 2 also submits that the present complaint is liable to be dismissed on the sole ground that the complainant is not a consumer of the opposite party No.2. The opposite party No. 2 operates on a Principal to Principal Basis only with its dealers, herein the opposite party No. 1 and as per the dealership agreement, the legal relationship between the opposite parties is strictly on a principal to principal basis. Furthermore, opposite party No. 2 does not receive any consideration from the complainant directly/indirectly that is why complainant is not a consumer. Further, present complaint is abuse of process of the law and is liable to be dismissed on this score only. It is also submitted in the preliminary objections that none of the relief as prayed in the relief clause of the complaint can be awarded to the complainant on account of the strict interpretation of the terms and conditions of the warranty issued by the opposite party No. 2. It is also submitted that the complainant has failed to prove any defect of any sorts and without any such cogent and qualified expert opinion from a Government Approved laboratory to prove his case, so that is why the present complaint is liable to be dismissed on this ground also. In regard of question of manufacturing date of alleged motor cycle opposite party No. 2 also took objection. On merits, opposite party No. 2 has took objection in regard of para No. 9 of relief clause of complaint. Hence the complaint is liable to be dismissed with cost imposed upon the complainant in the interest of justice.
5. In order to substantiate his case, the complainant has tendered his affidavit as Ex.C-1, copy of warranty card as Ex.C-2, copy of retail invoice as Ex.C-3, copy of RC as Ex.C-4, copy of job card as Ex.C-5, copy of e-mail as Ex.C6 and closed the evidence .
6. On the other hand, to rebut the evidence of the complainant, the opposite party No. 2 has tendered affidavit of Abhey Kumar as Ex.OP-2/1, copy of warranty and limitations of warranty as Ex.OP-2/2, copy of computerized print for particulars of vehicle as Ex. OP-2/3, copy of agreement between Hero Honda Motors and Bansal Automobiles as Ex. OP-2/4 and closed the evidence. Further, opposite party No. 1 has tendered affidant of Sanjeev Bansal Ex.OP-1/1, copy of complaint Ex.OP-1/2 and closed the evidence.
7. We have heard the learned counsel for the parties and have gone through the entire record carefully.
8. First of all we have a view that the legal relationship between the complainant and opposite party No. 2 is governed by terms and conditions of the warranty; however in the present case there is not even a whisper about there being any manufacturing defect in the Motorcycle. The said motorcycle model known as Passion Pro as purchased by the complainant on 22.5.2012, carries a manufactures warranty of 2 years/30000Kms. We have perused that the present case is utterly premature.
9. As we observed objections which were submitted by opposite party No. 2, it is correct that the complainant has failed to prove any defect of any sorts and without any such cogent and qualified expert opinion from a government approved laboratory and get any qualified expert opinion from any government laboratory. So, this case has no cause of action against the opposite party No. 2. In para no. 3 (d) of complaint, complainant states that it was the dealer/opposite party no.1 who had bad intentions because he sold a Motor cycle manufactured in July, 2011 as of January 2012, which he claims a unfair trade practice; may that as it may be; in this entire scenario the opposite party no. 2 has no cause of active/passive role to play in the mischief created by the dealer/opposite party no. 1 that’s why complainant has no cause of action qua the opposite party No. 2. We keen to mentioned the judgment of Hon’ble National Commission in case titled Maruti Udyog Limited vs. Arjun Singh & Another reported in III (2009) CPJ-22 (NC) in which it is held as under:-
“Consumer Protection Act 1986 –SECTION 21 (b) Motor vehicles- Delivery delayed – Forum directed manufacturer to deliver vehicle, falling which refund of money with interest directed –Once vehicle delivered by manufacturer, no further liability could be fastened on manufacturer and dealer on principal basis. Manufacturer not liable for acts of dealer- Order holding manufacturer liable to pay interest and compensation.”
10. Perusal of record reveals that apparently there was no manufacturing defect in the vehicle and complainant has not adduced any extra evidence or brought evidence of those witnesses the names of which were mentioned in the complaint to show that vehicle suffered from manufacturing defect or opposite party No. 1 misbehaved with the complainant. It is pertinent to mention here that about all alleged defects complainant has never produced any technician report about repair of the above said vehicle, in this Forum. Because onus to prove any manufacturing defect in motor cycle lies upon complainant. It is astonished fact that complainant himself brought on record Ex.C-2 i.e. terms and conditions and warranty period of two years which shows under para (a) All Hero motor corp. Passion pro motor cycle are warranted for a period of 2 years or 30,000 Kilometers from the date of purchase, whichever is earlier. And as per Ex.C-3 and pleading of complaint date of purchase is 22.5.2012. So, by this way warranty period has expired in regard of making any replacement or repair in parts of motor cycle.
11. In Maruti Udyog limited Versus Susheel Kumar Gabgotra & another cited as 1 (2006) CPJ 3( SC), wherein the Hon’ble Apex court has held that an order for any relief outside the terms & condition of the Manufacture’s warranty cannot be sustained.
12. As per preliminary objection of reply by opposite party No. 2 and as per Ex.OP-2/1, the present complaint is time barred by law. So, we also have a similar view due to not fulfilling the provisions by complainant regarding Section 24-A (2) of the Act for condoning delay before filing present complaint, case of complainant is badly hit and not maintainable.
13. In regard of Ex.C-6 i.e. E-mails to opposite parties and as per para (B) of preliminary objections of reply of opposite party No. 2 and Ex. O.P-2/1, it is submitted that in regard of dealers liability and relationship of the manufacturer and dealer that opposite party no. 2 operates on a principal to principal basis with its dealers and the relationship of opposite party No. 1and 2 is strictly on the above said principal for this purpose opposite party No. 2 tendered in its support Ex. OP-2/4 wherein it is clearly mentioned that the DEALER contracts both with Hero Honda and with all others in pursuance hereof as a principal and not as an agent of Hero Honda or other of any principal .
14. In regard of objection about liability of dealer we prefer this citation CPC 2010 (2) Page No. 67 in Classic Automobiles Versus Lila Nand Mishra & Anr.
“Section 13 (1) (c) and 2 (1) (g) –Manufacturing defect– Onus to prove any manufacturing defect in vehicle lies upon complainant– Vehicle was brought to service station for repairs –Question of manufacturing defect never raised – District Forum held dealer and manufacturer jointly liable to defects in vehicle – Entire liability was imposed on dealer by the State Commission – Appeal filed – Held dealer cannot be made liable unless vehicle is sold on rule of principal to principal – dealer had acted as inter se –mediatory between manufacturer and consumer – Dealer is not liable – In case liability of manufacturer, District Forum had not appointed any expert to check the point of manufacturing defect under Section 13 (1) (c) of the act- in the absence of expert opinion, it is difficult to hold that there was any manufacturing defect in the vehicle– Both the order quashed – Revision allowed.”
15. Moreover, in written arguments the complainant cited citation i.e. CCC page 117 (S.C.) Vol. 2113 (3) is not accurate with present complaint about the pending matter in regard of criminal complaint in court of Sh. Gurkiran singh P.C.S., JMIC, Barnala, because this Forum has no jurisdiction when a criminal complaint is pending in regard of same matter and same facts.
16. Moreover, it is also important to mention here that complainant himself tendered Ex.C-2 i.e. copy of warranty card, which proves in para (a) All Hero Motor Corp ltd. Passion Pro motor cycle are warranted for a period of 2 years or 30,000 kms from the date of purchase, whichever is earlier and we would like to give our view that Ex.C-2 is in the custody of complainant from the date of purchase i.e. 22.5.2012, so complainant has full knowledge regarding warranty period and he has wrongly mentioned in complaint about guarantee of three years of the said motor cycle, so this complaint is totally vague.
17. In view of our above discussion we do not find any merit in the present complaint and same is accordingly dismissed. However, there is no order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file after due completion be consigned to the records.
Announced in the open Forum
18th day of June, 2015
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
